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[2015] ZAECMHC 67
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Mtokonya v Minister of Police (1057/14) [2015] ZAECMHC 67 (23 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION – MTHATHA)
CASE NO: 1057/14
DATE: 23 SEPTEMBER 2015
Reportable
In the matter between:
SINETHEMBA
MTOKONYA
....................................................................................................
Plaintiff
And
MINISTER OF
POLICE
.........................................................................................................
Defendant
JUDGMENT ON THE SPECIAL
PLEA
Heard on: 17/08/15
Delivered on: 23/09/15
NHLANGULELA ADJP:
[1] On 23 April 2014 the plaintiff, an
adult male of 36 years of age, instituted an action against the
defendant claiming payment
of R350 000,00 as damages arising out of
an alleged unlawful arrest on 27 September 2010, and detention on the
same date for a
period of approximately four days.
[2] In defence to the claim as
aforementioned the defendant raised a special plea of prescription,
objecting to the claim on the
basis that the plaintiff’s claim
had become prescribed when summons were served on 23 April 2014
within the meaning of the
provisions of sections 11(d), 12 (1) and 12
(3) of the Prescription Act 68 of 1969 (the Act). Subsection 11(d)
provides that
a debt prescribes after 3 years; subsection 12 (1)
provides that the prescription shall begin to run as soon as the debt
is due.
In so far as the dispute is predicated on the provisions of
s 12 (3) I proceed to quote the subsection in full:
“A debt shall not be deemed to be
due until the creditor has knowledge of the identity of the debtor
and of the facts from
which the debt arises: Provided that a creditor
shall be deemed to have such knowledge if he could have acquired it
by exercising
reasonable care.”
[3] The plaintiff and defendant are
referred to in the Act as the creditor and debtor respectively.
[4] It appears from the stated case
filed on behalf of the parties that the plaintiff did not institute
an action within three years,
as he was enjoined to do so in terms of
s 11(d) of the Act, until it emerged from the conversation he had
with Mr Nkululeko Babe,
an attorney of record for the plaintiff in
July 2013 that he:
“3.2.1 was not supposed to be
detained in excess of a period of 48 hours without him having been
made to appear before a Court
of law;
3.2.2 was wrongfully and unlawfully:
3.2.2.1 misled by the Police into
believing that they will at some point call upon him to attend Court
simply to conceal the wrongfulness
of their conduct, but never called
him; and;
3.2.2.2 arrested and detained by the
Police in circumstances where they had no reason to believe that he
had committed an offence;
3.2.3 has a cause of action against the
Minister of Police for unlawful arrest and detention.”
[5] Despite the advices that the
plaintiff received from Mr Babe, summons were delivered only on 23
April 2014.
[6] Pursuant to discussions as
aforementioned the plaintiff instructed the same Mr Babe to institute
the action on his behalf, duly
preceded by a statutory notice issued
in terms of s 3 of Act 40 of 2002.
[7] The upshot of the plaintiff’s
case is that he was ignorant of the fact that he had a right to sue
the defendant for damages
as soon he was released from detention.
For the remissness of the plaintiff to be excused it must be
subjected to the test stated
by Tshiqi JA in MaCleod v Kweyiya
2013
(6) SA 1
(SCA) at 7 as follows:
“[13] It is the negligent and not
an innocent inaction that
s 12
(3) of the
Prescription Act seeks
to
prevent and courts must consider what is reasonable with reference to
the particular circumstances in which the plaintiff found
himself or
herself. In MEC for Education, KwaZulu-Natal v Shange
2012 (5) SA
313
(SCA) para 11 this court had to consider whether a 15-year-old
learner who had been hit with a belt on the side of his eye by his
teacher acted reasonably in waiting more than five years to institute
action against the teacher’s explanation that it was
an
accident. A family friend noticed that he was wearing an eye patch
and suggested that he should approach the Public Prosecutor.
An
advocate in that office advised him of the possibility of a claim
against the teacher. Synders JA held that the delay was
innocent,
not negligent. She stated:
‘He was a rural learner of whom
it could not be expected to reasonably have had the knowledge that
not only the teacher was
his debtor, but more importantly, that the
appellant was a joint debtor. Only when he was informed of this fact
did he know the
identity of the appellant as his debtor for the
purposes of the provisions of
s 12
(3) of the
Prescription Act.’”
[8
] In the case of Shange, supra, it
was found that although the learner had knowledge of the material
facts from which the cause
of action arose, he did not have knowledge
of the identity of the debtor (the MEC), and he could not be expected
to know the debtor,
until sometime later. In the MaCleod case the
plaintiff, a minor child, could not have obtained knowledge in 1988
that her claim
against RAF was settled by her attorney on a
significantly low amount of damages until in 2009 when she was 25
years of age. In
both cases it was held that the prescriptive period
of three years was delayed by the fact that the plaintiffs were
ignorant of
the identity of the debtor. In MaCleod, the plaintiff
was also ignorant of the fact that the attorney who settled her claim
was
liable towards her to the extent of the damages not recovered
from the RAF.
[9] In the present case the upshot of
the plaintiff’s case is that he did have the knowledge of
identity of the debtor and
the material facts giving rise to the debt
at the time when he was released from detention in September 2010;
but he did not know
that he had a legal remedy against the defendant.
That much was submitted by Mr Bodlani, counsel for the plaintiff,
when he said
that the plaintiff was not aware of his rights until he
was approached by Mr Babe with a legal advice that the plaintiff has
a
right to sue the defendant for damages. For present purposes the
real question to be asked, and answered, is whether knowledge
of a
legal remedy is required for prescription to run.
[10] Mr Mdeyide, counsel for the
defendant, brought the case of Claasen v Bester
2012 (2) SA 404
(SCA)
to the attention of the Court. The case of Claasen was referred to
with approval by Tshiqi JA in the MaCleod’s case.
The case of
Claasen deals with the interpretation of the provisions of s 12 (3)
of the Act in a long line of cases decided by the
Supreme Court of
Appeal which state that the subsection requires the creditor to have
obtained the minimum facts, not the legal
conclusions of the facts so
acquired. For an example, in Yellow Star Properties v MEC,
Department of Planning and Local Government
[2009] 3 All SA 475
(SCA)
at para. [37] the following was said:
“It was then argued by the
applicant that by reason of the provisions of
s 12
(3) of the
Prescription Act, prescription
only began to run once Smit J had
delivered his judgment as until then the applicant could not have
known that the sale was invalid.
Again, this argument cannot be
accepted. The section provides that a creditor shall be deemed to
have knowledge of the identity
of the debtor and of the facts from
which the debt arises if he could have acquired it by exercising
reasonable care. In the present
case, the applicant was told by the
Department of Development Planning and Local Government in its letter
of 12 December 2000 that
the property “belongs to the National
Department of Public Works and not the Gauteng Department of
Education who instructed
the disposal of the property.” From
then on, the applicant was aware that the property vest in the
respondent. This was
also clearly set out in the respondent’s
opposing affidavit in case 15278/2001 which was filed in August 2001
more than three
years before the institution of the applicant’s
action for damages. It may be that the applicant had not appreciated
the
legal consequences which flowed from the facts, but its failure
to do so does not delay the date prescription commenced to run.”
(The underlining is mine).
[11] M. M. Loubser in: “Extinctive
Prescription”, Juta, 1996 had the following to say at p104:
“However,
s 12
(3) refers
specifically to the facts from which the debt arises and not to the
legal implications of such facts, and it appears
therefore that the
subsection must be interpreted to mean that the prescription period
will begin to run even if the creditor is
unaware that the known
facts afford him a legal remedy.
This interpretation is supported by the
decision in Van Staden v Fourie, …”
[12] In Van Staden v Fourie
1989 (3) SA
200
(A) Grosskopf JA said the following a 216 E:
“Artikel 12 (3) van die
Verjaringswet stel egter nie die aanvang van verjaring uit totdat die
skuldeiser die volle omvang
van sy regte uitgevind het nie. Die
toegewing wat die Verjaringswet in hierdie verband maak, is beperk
tot kennis van ‘die
feite waaruit die skuld ontstaan’.
Myns insiens het die respondent reeds sodanige kennis gehad toe hy
die eerste betaling
gemaak het.”
[13] The Supreme Court of Appeal in
Truter v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
restated the principle mentioned in
Van Staden in the following terms at para. [20]:
“Section 12 (3) of the Act
requires knowledge only of the material facts from which the debt
debt arises for the prescriptive
period to begin running – it
does not require knowledge of the relevant legal conclusions (ie that
the known facts constitute
negligence) or of the existence of an
expert opinion which supports the conclusion.”
[14] In this case the plaintiff did
acquire knowledge that the defendant was the arrestor as well as that
the arrest and detention
were not justified; but he did nothing about
that. The legal advice that he later on obtained from Mr Babe that
he had right to
institute a claim for damages against the defendant,
was a legal conclusion made in July 2014 based on material facts
already in
existence in September 2010. In the circumstances it was
a negligent, rather than innocent, inaction on the part of the
plaintiff
to allow prescription of his claim to run. Therefore, the
answer to the question raised is that knowledge of a legal remedy
does
not interrupt prescription. The findings on the issue of
prescription dispose of the merits of the whole case.
[15] In the result the following order
shall issue:
1. The defendant’s special plea
is upheld.
2. The plaintiff’s claim is
dismissed.
3. The plaintiff to pay costs of the
action.
Z. M. NHLANGULELA
ACTING DEPUTY JUDGE PRESIDENT
Counsel or the plaintiff : Adv. A.
Bodlani
Instructed by : Babe and Talapile
Inc.
MTHATHA.
Counsel for the defendant : Adv. A.
Mdeyide
Instructed by : State Attorney.
MTHATHA.